When Regis University put some of its courses online in the 1990s, officials there figured that it was a no-brainer to administer tests online as well. And so they did.

Last fall, however, they received a threatening letter from Test Central Inc., which holds a patent on various types of online testing. The company claims that Regis and other colleges may be infringing on that patent and, if so, must pay thousands of dollars to continue offering tests online.

Ellen K. Waterman, director of distance learning at the Denver institution, says she was stunned to see that somebody claimed to own the rights to online testing itself. The patent claims made by Test Central are so broad, she says, that they seem to cover any type of testing in cyberspace.

"It's very, very general," she says. "If you can patent anything that people do on the Web, we are not protected at all."

But Test Central officials see things differently. They say that the patent does not necessarily cover all online testing and that they are entitled to be paid fees by any college conducting testing that is covered. And if they suspect a college of infringing on the patent, they may take the college to court.

"There are many organizations out there who have made a ton of money off of the technology that we've got a patent on," says James J. Posch, chief executive officer of Test Central and of its parent company, Test.com. "Our concern is that other people are profiting at our expense."

Some of the colleges that received letters from Test Central, based in Cleveland, have not yet decided how to respond, while others -- as well as companies that also provide online-testing tools to colleges -- plan to fight back.

Test Central's letters went out to an undetermined number of colleges soon after another technology company, Acacia, put colleges and businesses on notice that they might be violating its patent on streaming video technology (The Chronicle, November 7).

Together, the two companies' claims have led college officials to worry that many more companies could make their own claims to ownership of Internet processes. Such claims, the educators say, could threaten the viability of distance-education programs.

"This is like Pandora's box has opened," says Sally Johnstone, executive director of the Western Cooperative for Educational Telecommunications of the Western Interstate Commission for Higher Education, or WICHE. "Everybody thinks they can get a piece of the action because they had an idea at one time."

The idea of taking a test online, she argues, doesn't take someone like Thomas Edison to dream up. "It's a generic concept," she says. "This is ridiculous."

To defend themselves against the patent claims, some colleges are joining forces to respond to Test Central, Acacia, or whatever other company sends the next threatening letter.

Which Came First?

Test Central, founded in 1996, says it was in the online-testing business before anyone else. But online testing was in use before the company was formed, and certainly before it sought its patent.

That patent, No. 6,513,042, was applied for on February 11, 1999, and was granted by the U.S. Patent and Trademark Office on January 28, 2003.

The documentation describes the invention as relating "generally to a method of making a test and posting the test on-line for potential test-takers." The patent cites general examples of types of online tests that are protected, including multiple-choice and short-answer tests.

But many colleges and universities had been conducting tests online since the mid-1990s, before the World Wide Web became popular.

Under U.S. law, a patent can be revoked if the invention was in use before the inventor filed for the patent, a notion called "prior art," says Rita S. Heimes, a patent expert who is a visiting assistant professor of law at Suffolk University Law School, in Boston.

"Inventions must be novel in order to be appropriate for patent protection," she says. "It only takes one instance of prior art for it to be considered not novel."

Colleges would have a solid argument that the patent was invalid, she says, considering how many people were administering online tests before Test Central received its patent. "Simply reading the patent, this cannot possibly be novel," she says.

But in order to revoke the patent, someone must challenge it in court or with the patent office, Ms. Heimes says. Because doing so can cost thousands or even millions of dollars, many businesses and organizations choose to pay the licensing fees instead. "Once these patents are issued," she says, "they become so difficult to defeat."

Officials at Regis University don't believe that Test Central's patent claim is valid, although for now they have no plans to go to court.

"It's just very distressing," says Ms. Waterman, the distance-learning director. "Any university feels vulnerable in this situation. You want to protect yourself, but you also want to do what your business is."

The company's letter to colleges, a copy of which was obtained by The Chronicle, notifies them of its patent, which it says "covers various methods and systems for generating and posting online tests wherein a test-maker and proprietor share in the revenues generated."

Test Central's letter then invites the recipient to pay licensing fees to use the technology. It offers a number of options, including an annual fee based on a charge of $250 per "customer" of the organization, which in a college's case would be any student taking online tests. Regis, for example, has more than 3,000 online students. If each of them were counted in a licensing agreement, the university could have to pay more than $750,000 to provide online testing.

An institution would have to pay a minimum annual license fee of $25,000. Although the letter does not directly threaten legal action, it asks that the colleges reply within 30 days.

Mr. Posch, of Test Central, says that the company has a legal patent, and that the letters being sent out simply assert Test Central's rights as a patent owner. "We don't have a patent that covers all online testing," he says. "We have a patent that covers certain aspects of online testing."

But when asked to name a type of online testing not covered by the company's patent, Mr. Posch says it is not his place to do so. "There's probably a way you'd be able to do that without infringing on the patent, sure," he says.

Mr. Posch says Test Central sells online-testing software mostly to businesses. The company filed for patent protection to protect the software it sells, he says.

The company is in discussions with some colleges over its patent claim, Mr. Posch says, although he would not reveal which ones. Other colleges have simply ignored the letter. "Frankly, most of the companies we've contacted haven't even gotten back in touch with us, which in our eyes is somewhat an admission of guilt," he says.

'Off the Wall'

Officials at the University of Tulsa aren't worried about their letter from Test Central. The university buys its software from an outside vendor, says Dale Schoenefeld, vice provost for information services. Besides, he says, the company's patent seems to cover a concept that has been around for a long time. "We thought that this was so far off the wall that we didn't take this seriously," he says.

Both Regis and Tulsa use WebCT software for their online courses. WebCT, a leading provider of course-management software, says it indemnifies its clients, so colleges would not be held responsible if WebCT software were found to violate a patent.

WebCT officials say they are not concerned about Test Central's patent claims. "Our view is the patent doesn't represent an issue for us, given the fact that what we do in testing we have done for quite some time," says John D. Giordano, chief financial officer. "It shouldn't be a concern for our customers with regard to WebCT."

Colleges that deliver online tests and courseware using software from Blackboard and eCollege have also been contacted by Test Central. Like WebCT, those companies indemnify their clients, and officials of all three companies say they are not worried about the claim, which they say they would fight in court if Test Central continues to seek fees from their clients.

Power in Numbers

Some institutions are investigating ways to pool their resources to fight claims like those from Acacia and Test Central.

Among the institutions, the Johns Hopkins University and the University of Virginia are working with eCollege and WICHE to organize an effective defense against broad patent claims. Discussions are still in the early stages.

Russell Poulin, associate director of the Western Cooperative for Educational Telecommunications at WICHE, says getting a legal opinion to fight the Acacia patent alone could cost about $100,000.

But if a number of institutions work together, he says, they might deter other companies from bringing this sort of patent claim.

"They're right to be concerned, both in the specific case and what it portends for the future," Mr. Poulin says. "These are things that can't be taken lightly."